Guru Charan Sardar v. State of Bihar — 1983 DIGILAW 346 (PAT)

JUDGMENT : P. S. Mishra, J. The pre-emptor) who filed an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area And (Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as 'the Act') has moved this court under Articles 226 and 227 of the constitution of India questioning the validity of the ORDER :(resolution) of Sri Arun Prasad, Additional Member, Board of Revenue, passed under section 32 of the Act, and that of the Additional Deputy Commissioner, Singhbhum, passed in' an appeal under section 30 of the Act. . 2. Facts are short and undisputed. The petitioners are the adjoining raiyats of the vended lauds. The vendor (respondent no.5), the vendee (respondent no. 4) and the preemptors (Petitioners) belong to the Scheduled Tribes. With a view to transferring his land the vendor (respondent no. 5) filed an application under section 46 of the Chotanagpur Tenancy Act, 1908, for permission to the transfer. Notices, were accordingly issued to all concerned, including the public notice, and when no objections were filed permission to transfer the lands was granted to him. After the permission for transfer was obtained in accordance with law, respondent no. 5 executed a registered document of sale in favour of respondent no. 4. The petitioner thereafter filed an application for preemption al provided under section 16(3) of the Act. On the findings that the preemptors are raiyats of the adjoining lands of the vended plots and co-sharers the Land Reforms Deputy Collector, Saraikela, directed for re-conveyance of the lands in favour of the petitioners. 3. Respondent no.4- (the vendee) appealed under section 30 of the Act. The appeal was heard by the Additional Deputy Commissioner, Singhbhum, who allowed the, appeal holding that the petitioners could have objected to the proposed transfer by respondent no. 5 in favour of respondent no.4 when the application for permission to transfer the land was made under section 46 of the Chota Nagpur Tenancy Act, but they did not do so, and, later, when the transfer was made, they filed the application for preemption only to harass the parties. 4. The petitioners filed an application in revisions against the said ORDER :of the Additional Deputy Commissioner before Board of Revenue. They, however, committed a mistake in not impleading the vendor (respondent no. 5) as a party respondent to the revision application. 4. The petitioners filed an application in revisions against the said ORDER :of the Additional Deputy Commissioner before Board of Revenue. They, however, committed a mistake in not impleading the vendor (respondent no. 5) as a party respondent to the revision application. This mistake was later detected and an application for adding him as a party in the revision was filed by the petitioners on 11.1.1983. The revision application was finally heard by Shri Arun Prasad, learned Additional Member,. Board of Revenue. He held on the facts on this case that there has been inordinate delay in filing the application for impleading respondent no. 5 as a party respondent and such a prayer at a belated stage was barred by limitation. He has further held that no application for Condonation of delay was filed by the petitioners. They also failed to make out a case for condonation of delay. Relying upon a decision of the Supreme Court in Ch. Surat Singh V. Manohar Lal (AIR 1971 Supreme Court 240), he held that an application for adding a party at a belated stage could not be entertained and dismissed the revision application. The petitioners have thereafter moved this Court and questioned the validity of the ORDER :s of the Additional Deputy Commissioner, Singhbhum (Annexure 2) and the Additional Member, Board of Revenue (Annexure 1). 5. There has been no limitation prescribed for an application in revision under section 32 of the Act, while there has been such a provision for filling an appeal under section 30 of the Act, until e Bihar Ordinance No.22 of 1982, published in the Bihar Gazette (Extraordinary) dated 25.1.1982 statutorily fixed a period of 30 days for filing a revision application before the Board of Revenue under section 32 of the Act, Bihar Ordinance No. 22 of 1982 was followed by the Bihar Act No. 55 of 1982, which got President's assent on 29.1.1982 and came in force on its publication in the Bihar Gazette (Extraordinary) dated the 30th April, 1982. It is not in dispute that the petitioners filed their revision application within the prescribed period of time. It is not in dispute that the petitioners filed their revision application within the prescribed period of time. Learned Additional Member, Board of Revenue, has however, proceeded on the footing that if a necessary party is not impleaded, when the application in revision is filed, the same shall not be deemed to be filed in time in so far as the party not impleaded is concerned. It appears that the Issue of limitation and the addition of party was confused to the extent that there should have been an application for condonation of delay under section 5 of the Limitation Act along with an application for addition of party also prevailed before him. The learned Additional Member, Board of Revenue, has not adverted to the merit of the case. Having found that there has been inordinate delay in making an application for addition of the vendor as a party respondent to the revision application he rejected the revision application itself on the ground that it was barred by limitation. 6. In all cases of impleading a wrong person as a party or commission to implead a proper or necessary person as a party Courts have universally applied the principles embodied under ORDER :1 Rule 10 of the Code of Civil Procedure. Courts have been repeatedly told by the Supreme Court that technicalities, particularly relating to the procedure, should not be allowed to affect the Course of justice. Provisions under ORDER :1 Rule 10 of the Code of Civil Procedure are also couched in such words that it is always in the interest of justice that a Court of law has to consider whether the names of certain person should be deleted from a proceeding and whether certain persons names should be, added or not. A reference may be made at this stage to the provisions as contained under ORDER :1 Rule 10(2) of the Code of Civil Procedure. A reference may be made at this stage to the provisions as contained under ORDER :1 Rule 10(2) of the Code of Civil Procedure. It says: "The court may at any stage of the proceedings, either upon Or without the application of either party, and on such terms as may appear to the court to be just, ORDER :that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in ORDER :to enable the court effectually and completely to adjudiate upon and settle all the questions involved in the suit, be added.", The law has emphasised upon the duty of the Court to add a necessary person as a party to effectually and completely adjudicate upon and settle all the questions imolved 'in the suit. True, the provisions, as contained in the Code of Civil Procedure may not be applied in a proceeding like the one in hand. But a proceeding before the Board of Revenue or the appellate authority or, for that matter, before the Collector under the• Act, is a statutory proceeding and as the rights of the parties have to be adjudicated in such proceedings, they are for all purposes judicial proceedings. Quasi judicial proceedings are also required to conform to the common law principles, like principle of natural justice and fair play. A technical mistake of not naming a person as a party, who did not respond to the notice before the Collector and did not appear before him nor did he appear before the appellate authority, can be used only to a limit. It cannot be said that the application in revision filed before the Board of Revenue without the vendor impleaded as a party was no filing of a revision application at all. Like a Court of law the Board of Revenue could permit the petitioners to add the vendor, if his presence was taken to be necessary for effectually and completely adjudicating the dispute between the parties. Like a Court of law the Board of Revenue could permit the petitioners to add the vendor, if his presence was taken to be necessary for effectually and completely adjudicating the dispute between the parties. The law that was placed before it that is to say, the authority in the case of Surat Singh (supra) also in a way supports the view that a Court of hw is required to consider if the lapse of a party is such that it should be taken to disentitle it from seeking interference by a higher or superior Court. The case of Surat Singh (supra) has been decided by the Supreme Court On its own facts. This case is not an authority for the proposition that even in a case in which it is shown that there has been a genuine mistake there should be no addition of a party at a belated stage. Apart from this, it is always in the interest of justice, and there are innumerable decisions of the Supreme Court emphasising that Court/Authorities/Tribunals's hands are not fettered by technicalities if it in brought to its notice that something palpably illegal or void has-been done which could be by its ORDER :avoided. 7. Coming to the provisions under section 16 of the Act it has to be seen that right to preempt accrues with the transfer of the land and not before it. There could be no 'claim of pre-emption in favour of the, petitioners unless there has been a transfer. The filing of any objection to the application for permission to transfer cannot be made a condition precedent to what is specifically pronounced by the Statute under section 16(3) of the Act. 8. Learned counsel for respondent no. 4 has contended that in view of the special provisions of the Chota Nagpur Tenancy Act intention to preempt must be disclosed by filing an application under section 46 of the said Tenancy Act; and if there is no such objection filed, a right under section 16(3) of the Act should not be allowed to be exercised. In other word, according to learned counsel for respondent no. 4, no application under section 16(3) of the Act should be entertained on behalf of a raiyat of the adjoining land or a co sharer who does not exercise his right under section On 46 of the said Tenancy Act. Right of pre-emption. In other word, according to learned counsel for respondent no. 4, no application under section 16(3) of the Act should be entertained on behalf of a raiyat of the adjoining land or a co sharer who does not exercise his right under section On 46 of the said Tenancy Act. Right of pre-emption. which has been recognised in the State of Bihar as a customary right, has been given sanction of law and has been made statutory right of a raiyat of the adjoining land or a co-sharer under section 16(3) of the Act in respect of the lands used for agricultural or horticultural purposes. This right becomes available only when the transfer of land is made and not before it is actually made. In a series of cases his court has prouounced that an application for preemption flied before the transfer is perfected is premature and action taken pursuant to any such application or upon any such application is without jurisdiction. Once it is found that the right to preempt accrues only after transfer is made and for pre-emption an application has to be filed within a period of limitation prescribed for the laid purpose, which is a concluded law, as held by this Court, it is not possible to deny to a raiyat of the adjoining land or a co-sharer the right to file an application for preemption On the ground that he could file a objection to an application for permission to transfer the land filed by the vendor under section 46 of the Chota Nagpur Tenancy Act. Learned Additional Deputy Commissioner (respondent no. 3) has evidently committed all error of law in rejecting the application for pre-emption on the ground that the petitioners did not file any objection to the application for permission to transfer the land in question by the vendor under section 46 of the said Tenancy Act. 9. Learned counsel for respondent no.4 has next contended that a person, who could file an application under section 46 of the laid Tenancy Act having not exercised his option to object to the proposed transfer must be taken to have waived his right to make an application for preemption under section 16(3) of the Act. This argument I am afraid, cannot be accepted. This argument I am afraid, cannot be accepted. It is doubtful if there can be any waiver of the right to make an application for preemption by not filing an objection to the application for permission to transfer under the chotanagpur Tenancy Act. A right cannot be waived before it accrues. Right to pre-empt by an application under section 16(3) of the Act is created in favour of a raiyat of the adjoining land or a co-sharer only after the transfer is made. There cannot be, therefore, waiver of such a right before the transfer is actually made. 10. The right of preemption is a weak right, nonetheless it is a right created under a statutory provision. The petitioners are raiyats of the adjoining land as also co-sharers of the vended land. The purchaser (respondent no. 4) is neither a co-sharer nor a raiyat of the adjoining land. Application for pre-emption was filed within the time prescribed under the law. The learned Additional Deputy Commissioner (respondent no. 3) has committed an error of law in rejecting the 'application for pre-emption on the ground, that the pre-emptors having not filed any objection to the application for permission to transfer, filed by the vendor under section 46 of the Chota Nagpur Tenancy Act, cannot be granted relief of re-conveyance under section 16(35) of the Act. This error of law is such that, if allowed to stand, it shall cause serious miscarriage of justice. The learned Additional Member, Board of Revenue, rejected the revision application of the petitioners on the sole ground that the vendor had not been impleaded as a party respondent when the application for revision under section 32 of the Act was filed 22.4.1982. While considering the application for adding the vendor (respondent no. 5) as a party, he failed to consider that for effective and proper adjudication of the issue involved in the revision application' before him if it was necessary to add the vendor as a party he could do so even later, before, however, passing the final ORDER :, Respondent no. 5 (vendor) had not appeared in the proceeding at any stage. He has not appeared before this Court also. 5 (vendor) had not appeared in the proceeding at any stage. He has not appeared before this Court also. In my view, the learned Additional Member, Board of Revenue should have allowed the application filed on behalf of the petitioners and if the technicalities of law required a notice to be given to him, sent a notice of the revision to the vendor (respondents no. 5) and given him an opportunity to show cause and heard him. The ORDER :passed by the appellate authority (respondent no. 3) is so obviously illegal that no prompting or persuation was needed to a revisional Court, like the Board of Revenue, for quashing and setting aside his ORDER :. I an satisfied that the ORDER :passed by the learned Additional Member, Board of Revenue dated 25.1.1983, as contained in Annexure ‘1’ is illegal and is fit to be quashed. I am also satisfied that the ORDER :passed by the Additional Deputy Commissioner, Singhbhum at Chaibassa, dated the 23rd February, 1982, as contained in Annexure 2', is illegal and fit to be quashed. No useful purpose shall be served by sending back this case to the Board of Revenue for a decision in accordance with law on the merits of the case as respondent no. 4. has not pleaded any fact or law, except as has been discussed above which shall require any scrutiny of the materials on the record and determination of questions of law involved, by the Board of Revenue. 11. In the result, the application is allowed, the ORDER :of the Additional Member, Board of Revenue, dated 25.1.1983, in Case No. (Singhbhum) 98 of 1982, as contained in Annexure 1' is quashed. The ORDER :of the Additional Deputy Commissioner, Singhbhum at Chaibassa, in L.C. Appeal Case no. 82 of 1980-81, dated 23.3.1982, as contained in Annexure 2' is also quashed. Let a writ in the nature of certiorari accordingly issue. Let a writ in the nature of mandamus also issue directing respondent nos. 4 and 5 to re-convey the land in question in favour of the petitioners in accordance with law. On the facts and in the circumstances of this case the parties shall bear their own costs. Application allowed.